Posted on 05/21/2004 10:24:54 AM PDT by Arrowhead1952
Outback Steakhouse to pay bulk of settlement for serving driver alcohol
By Steven Kreytak
AMERICAN-STATESMAN STAFF
Friday, May 21, 2004
Michael Cunningham is full of hope.
His family's Hyundai was crushed by a drunken driver's GMC Yukon almost three years ago, and his wife, Panchita Cunningham, 44, is now a paraplegic and living in a South Austin nursing home. But she recently started to move the eyelid and foot on her previously motionless left side.
The drunken driver, David Elkin, was sent to prison for about a year for intoxication assault and is now working and living in Houston. Michael Cunningham said he is optimistic that Elkin, who is 25, can rebound and live a positive life.
And next week, a state district judge is expected to approve a lawsuit settlement that will pay the Cunninghams $3.85 million. Michael Cunningham, 38, plans to use the money to pay for surgeries and physical therapy that his wife's current insurance won't cover because doctors think the procedures won't help.
Most of the money will come from the Outback Steakhouse chain. Elkin had been drinking at an Outback on U.S. 183 in North Austin before the wreck.
"No amount of money is going to replace my wife coming home with us," said Michael Cunningham, who lives in Cedar Park with the couple's 11-year-old son, Rashard. "We have to look at it as a means to an end."
The Cunninghams sued Outback under a Texas law that allows victims of wrecks with drunken drivers to seek damages from the restaurant or bar that served alcohol to a driver who was visibly intoxicated, said the family's Austin lawyer, John Ragland.
University of Texas School of Law professor David Robertson said such lawsuits are becoming increasingly common in criminal cases because people who commit crimes usually don't have much money or insurance coverage. "Lawyers are eternally on the lookout for a solvent entity whose conduct has facilitated the crime," he said.
John Polewski, a DeSoto lawyer representing Outback, said that the settlement was a way to avoid the uncertainty of leaving damages to a jury. Such an award could have topped $20 million, he said.
"He wasn't showing any signs of being intoxicated at the Outback," Polewski said of Elkin. "We certainly feel terrible for Panchita and her family."
The lawsuit alleged that on the night of the wreck, Elkin had been drinking with a business associate and other friends at the Outback Steakhouse on U.S. 183, near Duval Road.
"The alcohol servers failed to monitor the amount of alcohol consumed by Defendant Elkin and failed to communicate with each other about the amount he consumed," Ragland wrote in the lawsuit.
When Elkin left the Outback, Michael and Panchita Cunningham were returning home after picking Rashard up at a friend's house.
As they stopped at a yield sign to turn onto the U.S. 183 frontage road, Elkin took a turn onto the same road too fast and plowed into the Cunninghams' Hyundai, Ragland said.
Michael Cunningham suffered internal injuries, and Rashard broke his arm. Panchita Cunningham suffered major trauma to the right side of her head, which controls the left side of her body, Michael Cunningham said. She lost the ability to speak for a year after the wreck.
Elkin, who could not be reached for comment, was sentenced to two years in prison and was paroled last year after serving less than one year.
Michael Cunningham said he wrote a letter to the parole board recommending that Elkin be released.
"We are Christians," he said. "I could not hold all of that hate and anger. The only person that it would have come out on is my son."
Elkin was "profoundly" affected by the crash and "feels very, very bad," said his civil lawyer, Bob Grove of Austin, who declined further comment.
Under the settlement, Elkin will pay the Cunninghams $100,000, which will be covered by his auto insurance. Elkin's employer will pay $100,000. He worked for a lawn sprinkler service company, and Ragland alleged that because a colleague from the same company was drinking with him that night, the trip to Outback was partly work-related.
3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.
Cunningham said he hasn't heard from Elkin, but hopes he is doing all right.
"He has to learn how to forgive himself," he said. "Because we have already forgiven him."
I heard about one DUI who was stopped in that county (so drunk he had no idea where he was at) and when he asked where he was, the officer told him Williamson county. The drunk started crying. He knew what kind of juries and the punishment you get there.
Under the settlement, Elkin will pay the Cunninghams $100,000, which will be covered by his auto insurance. Elkin's employer will pay $100,000. He worked for a lawn sprinkler service company, and Ragland alleged that because a colleague from the same company was drinking with him that night, the trip to Outback was partly work-related.
3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.
About sued everyone in sight.
To have a defense against these lawsuits, industry must:
1. Track every drink that a customer has purchased
2. Not allow anyone from a business to go out to dinner with anyone else from that same business in their off time
3. Do not secure or build anything within 100 yards of a road just in case someone crashes into it.
No doubt those posts should have been made from adhesive-hardened (3M's in that business as we all know) pasta all the Atkins folks aren't eating any more. Unreal.
Outback and 3M shouldn't pay; they should confiscate Elkin's internal organs and sell 'em to pay off the victims.
Bad news for Mr. C. That money is going to beused to pay for what the insurance does cover, also. Insurance company gets reimbursed from the proceeds of the lawsuit. It always happens and the litigant always says they didn't know.
3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.
I noticed you both picked up on this comment. What I would like to know, is if the barriers had not been protecting the pipeline, they could have sued 3M for NOT having a barrier and also sued the pipeline company for the pipeline just being there.
This is getting to be a country whose motto may as well be, "How do you do? My name is sue, sue, sue you."
So, Cunningham wants the actual perpetrator of his wife's death to get out of jail early. But his Christian compassion doesn't apply to getting millions from corporations like Outback and 3M.
Correction: wife is not dead, she's a paraplegic.
I do not how to come down on these lawsuits. Mrs. C has suffered serious injuries due to negligence. The problem is how to allocate liability. Personal responsibility is one thing, compensating for Mrs. C's injuries is another.
If I had a party, I would clearly not be responsible for any injuries attributable to my giving booze to my guests. If I "sold" booze and made a profit on it, it is reasonable that I have a higher level of responsibility.
All resturants should impose a three drink maximum to all patrons. At Hooters, they have a one pitcher per person limit.
The problem is that some patrons could be visibly intoxicated after two drinks.
"If I had a party, I would clearly not be responsible for any injuries attributable to my giving booze to my guests. If I "sold" booze and made a profit on it, it is reasonable that I have a higher level of responsibility."
Think again. The precedent has already been set for the victims of drunk-driving collisions to sue the host(s) of a party they were at. Looking at how liability was thrown around in the above case, I'm surprised they didn't also sue the makers of whatever beverages were consumed that led to intoxication.
In any case, if plaintiff's can't extract as much money as they need or deserve from the parties that are truly responsible, then that's just tough. I don't mean to sound cold-hearted, but the welfare of the plaintiff isn't, or shouldn't be, the concern of the courts. Justice should be the concern of the courts. Allocate liability honestly and fairly and let the chips fall where they may.
As far as I recall from newspapers and such (not a careful perusal of actual legal citations) The law in California does not distinguish between "sell" and "give" in the way you imply. If you provide booze to someone who later leaves your party (presumably at your house) in a drunken state and causes an accident/injury/death, I strongly believe you would be liable in the same way as a restaurant, albeit with smaller pockets to go after.
It would appear Michael Cunningham should be sued by his wife for negligence for not suing General Motors, the maker of the evil GMC Yukon SUV piloted by the intoxicated driver.
I'd be suing the dinosaurs, since they were chiefly responsible for the fuel used to power the Yukon, plus the vehicles that poured the 3M concrete. Then I'd go after Scott's, who provided the grass seeds which made his lawn sprinkler job so bloody stressful.
Had this twerp done this in Williamson county which borders Travis to the north/northeast, he would be serving at least 50 years.
I ask you; given the circumstances, who is guilty of the greater crime?
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